Sunday, August 10, 2014

Testing Doctors for Drugs and Alcohol

I read recently that the left coast state of California is contemplating requiring physicians to submit to alcohol and drug testing.   Citizens there will be voting on this proposal this November.I do think that the public is entitled to be treated by physicians who are unimpaired.  Physicians, as members of the human species, have the same vices and frailties as the rest of us.

Traveling leftward

I have no objection to this new requirement, if it passes. This will not be a stand-alone proposal on the ballot, but is a part of the ballot initiative.   Why would trial lawyers in the Golden State want to include it?  The meat of their ballot effort is to reverse effective tort reform that had been in place there for several years.   Click on the Legal Quality category on this blog for a fuller explanation of why the medical malpractice system has been screaming for reform, and is slowing getting it.  Sure, there are always two or more sides to every issue.  But, when the different points of view here are fairly weighed, trial lawyers’ self-serving positions are overtaken.  They offer a different spin, of course.  While I acknowledge the validity of some of their arguments, I believe that the system they advocate helps very few at the expense of many more innocents.

The California ballot initiative aims to increase the financial cap for a medical malpractice award from $250,000 to $1.1 million.   Trial lawyers and other supporters were concerned that the public may reject raising the cap as they have been enjoying the benefits of tort reform.   Focus groups supported the notion that the public would find the drug and alcohol testing proposal appealing, which would raise the probability of passage of the bill.

There’s nothing evil about any of this.  Every player in every issue uses polling and focus groups to create and tailor their message.   (Ever notice how politicians claim they never read polls whenever poll results are against them or their positions?)   I’m sure that the insurance companies who champion tort reform are using the same techniques to manage their message. 

But, voters there and the rest of us should recognize why the drug and alcohol provision is included.  It was just a spoonful of sugar to make the legal medicine go down.  Why not just include the medical malpractice vote on the ballot by itself,?  We’ve seen our politicians use this same technique over and over again.  Add a popular poison-pill provision to an unpopular piece of legislation.  When it’s properly voted down, criticize those who voted against it by pointing out their opposition to the popular add-on provision.  Follow this example.

Legislator A:   I am adding an amendment to the Quadruple the Minimum Wage Bill that would give all veterans and their families free First Class seating on all domestic flights.
Legislator B:  I am voting against the bill because I think that quadrupling the minimum wage is bad economic policy
Legislator A:  Shame on Legislator A for trashing our veterans who have sacrificed so much for this country.

Should other professions be subjected to random drug and alcohol testing?  Which would you suggest?

Will Californians see through the smoke here?   We’ll find out this November?

10 comments:

Anonymous said...

" The meat of their ballot effort is to reverse effective tort reform that had been in place there for several years. "

What evidence is there that California "tort reform" (caps) have been effective? Health care is no cheaper there. Are premiums less? Is there less malpractice? More physicians per capita than in non-capped states with similar income levels?

If it was so effective, why did California have to pass subsequent legislation 2 years after enacting caps forcing insurers to give back premium dollars - effectively insurance reform?

Anonymous said...

You have to admit, it is a little ironic that you call the other side "self serving". Given that you blithely assume without evidence that this is somehow good for the public.

Michael Kirsch, M.D. said...

Irony noted. All sides of this issue can be accused of advancing 'self-serving' arguments. As I weigh the various angles of the issues, admitting that I am an interested party, I believe that tort reform serves the greater good. I discuss this in detail over many posts in the Legal Quality section of this blog.

With regard to California, far from my universe, everyone has their own statistics to buttress his position. Even if there were no cost savings, which there should be, it promotes fairness, in my view.

Comments appreciated.

Anonymous said...

Actually, I think calling someone "self serving" is a weak way of avoiding the discussion. I'm merely pointing out the irony.

Saying "I believe that tort reform [caps] serves the greater good" is a belief, not a fact. Presumably you reached that belief on the basis of some facts, right? I realize this is politics and most people reach opinions before facts, but you're a physician, so I know you know the value of gathering information before reaching conclusions.

Not sure how one concludes that deciding the value of an injury without regard to the injury or the person who was harmed would be "fair". It would seem that 12 people without skin in the game weighing all the evidence and reaching a conclusion would be far more likely to be "fair". But maybe you define fairness with more of an insurance lobbyist bent.

Michael Kirsch, M.D. said...

Here are some facts that support my contention that the current system does not serve the greater good.

(1) The vast majority of patients who are true victims of medical malpractice are never compensated or even brought into the system.

(2) Most claims of medical malpractice that reach a court room are decided in favor of the doctor.

(3) Most physicians who are brought into the medical malpractice arena are innocent and are simply ensnared in the oversized legal net that is standard issue for the plaintiff's bar here.

In my view, this structure hardly serves the greater good. No system serves everyone's interest, but the current one performs poorly from a societal standpoint, as I see it.

Anonymous said...

"Here are some facts that support my contention that the current system does not serve the greater good."

That wasn't your contention - your contention was that California's tort reform, which is essentially damage caps, WAS good.

"(1) The vast majority of patients who are true victims of medical malpractice are never compensated or even brought into the system."

What does this have to do with California's proposal? Or existing law? It doesn't - it's a talking point that avoids the fact that you're not proposing or supporting anything that DOES allow more people to be compensated for their harm. Nor is any tort "reformer".

"2) Most claims of medical malpractice that reach a court room are decided in favor of the doctor."

Again, what does that have to do with damage caps in California? Nothing.

"(3) Most physicians who are brought into the medical malpractice arena are innocent and are simply ensnared in the oversized legal net that is standard issue for the plaintiff's bar here."

And that has what to do with the California damage caps being increased? Nothing.

"In my view, this structure hardly serves the greater good. No system serves everyone's interest, but the current one performs poorly from a societal standpoint, as I see it."

Perhaps, but you're not really advocating something that meets the goals you say it's not meeting. You're simply saying that California's caps shouldn't be increased, which doesn't address your goals at all. Rather it simply arbitrarily limits the recovery of those who have already been determined to be injured as a result of negligence.

So, again, I ask you, where is the evidence that California's caps have been effective? And if you aren't aware of any, how did you reach your conclusion they should remain in place?






Michael Kirsch, M.D. said...

I am more familiar with damage caps in Ohio, than in CA. They worked. I acknowledge your point that my response did was not directly aimed at the California cap issue, but I stand by my 'contentions'. As I have written elsewhere on the blog, I have supported caps on damages, understanding that some deserving individuals will not be fully compensated, as no other remedy for legal abuse was possible. I can't propose for you a solution to a vexing problem that has been present for decades in a blog comment. The excesses and deficiencies of the current system are self-evident. Need a much better filter to keep innocent MDs out and include true negligent care. Perhaps, some form of 'no fault' system. Perhaps, compensating all adverse rxns rather than just negligent ones. I don't think the trial lawyers will advocate any system that is against their self-interest even if it is in the public interest. Before you attack my colleagues, I am aware that physicians are not immune from self-protection either.

Anonymous said...

"They worked"

How so? I understand you believe this, but surely you have some basis for this.

Was there less malpractice? Is healthcare now cheaper? Is insurance cheaper than in similar states without caps? Are insurers more profitable? Are physicians more profitable? Are patients healthier? Would any of those things been true if the cap was a different number? Any of those might support a claim that "they worked".

You can stand by your contentions - they're fine contentions. But caps don't address any of them. Because they're not designed to. Your contentions are noble, and they're designed to mask the fact that almost all "tort reform" proposals are focused solely on reducing insurer exposure, regardless of the legitimacy of the harm.

So while you wax poetic, let's focus on what's actually being proposed.

Anonymous said...

So would it be fair to say that your original contention that what California has had is "effective tort reform" is a faith based belief rather than an evidence based one?

Voice M.D. said...

Both the surgeon and the trial lawyer are involved in death-struggles although, truth be told, it's the lawyers who as prosecutors are allowed to strive to put someone to death and may win kudos for so doing. But now the lawyers, especially those whose specialty is malpractice, want to impose random testing on doctors while continuing to exempt themselves.

physicianforfairness.blogspot.com/2014/05/random-drug-testing-for-lawyers.html

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